People v. Fournier

• Decision Date: 16 July 1990
• Docket Number: No. 90SA36,90SA36
• Citation: 793 P.2d 1176
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Mary Louise FOURNIER, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 1176

793 P.2d 1176

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Mary Louise FOURNIER, Defendant-Appellee.

No. 90SA36.

Supreme Court of Colorado En Banc.

July 16, 1990.

Edward J. Rodgers, III, Steven B. Rich, Chief Deputy Dist. Attys., Canon City, for plaintiff-appellant.

Jeffrey F. Manning, Canon City, for defendant-appellee.

Justice QUINN delivered the Opinion of the Court.

The People, in this interlocutory appeal, challenge the district court's suppression of marijuana plants and other items of evidence seized from the residence of the defendant, Mary Louise Fournier, during a search pursuant to a warrant. The district court ruled that the search was invalid because the affidavit for the search warrant was subscribed and sworn to before a court clerk rather than a judge as required by Crim.P. 41(c)(1). We conclude that, although the procedure followed by the issuing judge did not conform to the literal requirements of Crim.P. 41(c)(1), the issuance of the search warrant under the circumstances present here did not violate the constitutional proscription against unreasonable searches and seizures under either the United States or the Colorado Constitution. U.S. Const.Amend. IV; Colo.Const. art. II, § 7. We accordingly reverse the suppression ruling.

I.

The defendant is charged in the District Court of Fremont County with the cultivation of marijuana, § 18-18-106(8)(a), 8B C.R.S. (1986), allegedly committed on September 20, 1989. The charge is based on the seizure of several marijuana plants, a quantity of dried marijuana, and various items of drug paraphernalia from the defendant's residence on September 20, 1989, during a search pursuant to warrant. After entering a not guilty plea to the charge, the defendant filed a motion to suppress on several grounds including, as pertinent here, the claim that the affidavit for the search warrant was not sworn to or affirmed before a judge as mandated by Crim.P. 41(c)(1).

The district court conducted a hearing on the defendant's motion, and the evidence developed at the hearing established the following facts. On September 15, 1989, Detective Bert Battu of the Fremont County Sheriff's Office received an anonymous tip that there were marijuana plants growing in the back yard and in the basement of the home of Larry Fournier at 945 O Street in Penrose, Colorado. After receiving this information, Detective Battu arranged for another officer, Sonnie Rector, to go to the residence and pose as a potential purchaser of pigs that Fournier had advertised for sale. On September 19, 1989, Officer Rector went to the defendant's home for the ostensible purpose of examining the pigs and while at the home observed three marijuana plants growing in the backyard.

Detective Battu prepared an affidavit for a search warrant, and intended to submit the affidavit and proposed search warrant to a judge at the courthouse in Canon City. All three judges in the district, however, were attending a judicial conference out of town and thus were not available to review the affidavit. The detective was informed by the clerk of the court that on the following day a senior judge ¹ would be available in Fairplay, which is in Park County and is approximately seventy-five miles from Canon City. Because the detective was unable to swear to the affidavit before a judge, he requested the clerk to place him under oath and to acknowledge his signature on the affidavit. The detective was duly sworn by the clerk and signed the affidavit in the presence of the clerk, who then acknowledged in writing that the affidavit "was subscribed and sworn to before me on the 19th day of September, 1989."

The affidavit and proposed search warrant were then sent on the same day by an electronic facsimile transmission (FAX) to Fairplay for the judge's review. The judge issued the search warrant on September 20, 1989, and returned the documents to Detective Battu by a FAX transmission. Detective Battu then executed the warrant on the same day and seized the contraband and other evidence from the home of the defendant.

The district court granted the defendant's motion to suppress. Relying on that part of Crim.P. 41(c)(1) which requires that the affidavit for a search warrant be "sworn to or affirmed before the judge," the court concluded that such requirement is the only way "an impartial magistrate can make a decision as to whether or not there is probable cause to invade the privacy of an individual's home" and thus was basic to the constitutional protection against an unlawful search or seizure. In challenging the court's suppression ruling, the People contend that neither the United States nor the Colorado Constitution requires an affidavit to be sworn to or affirmed before a judge and thus any violation of Crim.P. 41(c) in this case did not amount to a constitutional violation requiring the suppression of the evidence seized during the execution of the warrant. ²

II.

The Fourth Amendment to the United States Constitution states that "no warrants shall issue, but upon probable cause, supported by oath or affirmation." Article II, section 7 of the Colorado Constitution prohibits the issuance of a search warrant unless there is probable cause "supported by oath or affirmation reduced to writing." Neither the United States nor the Colorado Constitution specifically addresses whether the applicant for a search warrant must physically appear before the issuing judge, nor does the federal or state constitution expressly mandate that the applicant must swear to or affirm the affidavit in the physical presence of the judge. Crim.P. 41(c)(1), however, does address these matters by providing as follows:

A search warrant shall issue only on affidavit sworn to or affirmed before the judge and relating facts sufficient to:

(I) Identify or describe, as nearly as may be, the premises, person, place, or thing to be searched;

(II) Identify or describe, as nearly as may be, the property to be searched for, seized, or inspected;

(III) Establish the grounds for issuance of the warrant, or probable cause to believe that such grounds exist; and

(IV) Establish probable cause to believe that the property to be searched for, seized, or inspected is located at, in, or upon the premises, person, place, or thing to be searched. (Emphasis added). ³

The question raised in this case is whether the requirement that the affidavit be "sworn to or affirmed before the judge" is a constitutional mandate, the violation of which triggers the application of the exclusionary rule.

The exclusionary rule is a judicially created remedy designed primarily to deter unlawful searches and seizures by the police. E.g., United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); People v. Schoondermark, 759 P.2d 715 (Colo.1988). In the absence of the good faith or other recognized exception to the exclusionary rule, ⁴ evidence obtained by the police as a result of an unlawful search or seizure is not admissible against a defendant in the state's case in chief. See generally United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Schoondermark, 759 P.2d 715. Where, however, a law enforcement officer obtains evidence in violation of a statute or regulation, the exclusionary rule is not triggered unless the unauthorized conduct also amounts to a constitutional violation. E.g., United States v. Caceres, 440 U.S. 741, 749-50, 99 S.Ct. 1465, 1470-71, 59 L.Ed.2d 733 (1979); United States v. Rome, 809 F.2d 665, 669 (10th Cir.1987); People v. Thiret, 685 P.2d 193, 200 (Colo.1984); People v. Hamilton, 666 P.2d 152, 156-57 (Colo.1983); People v. Wolf, 635 P.2d 213, 217 (Colo.1981).

The requirement of Crim.P. 41(c)(1) that the affidavit be "sworn to or affirmed before the judge" serves the salutary purpose of impressing upon the affiant and the issuing judge the serious nature of the warrant process and the legal significance of the oath or affirmation to that process. We commented on the significance of the rule in People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971). The precise issue in Brethauer was whether the affidavit in question satisfied the constitutional standard of probable cause. In holding that probable cause must be determined solely on the basis of the averments within the four corners of the affidavit, we made the following observation with respect to Crim.P. 41(c)(1):

It is, of course, elementary and of no consequence that the police might have had additional information which could have provided a basis for the issuance of the warrant. Should the judge to whom application has been made for the issuance of a search warrant determine that the affidavit is insufficient, he can require that sworn testimony be offered to supplement the warrant or can demand that the affidavit be amended to disclose additional facts, if a search warrant is to be issued. Under our Constitution, the warrant can only be issued upon probable cause supported by oath or affirmation which is reduced to writing. Colo.Const. art. II § 7. Moreover, Crim.P. 41(c) requires an affidavit to support a search warrant, which establishes the grounds for the issuance of the warrant, and demands that the affidavit be sworn to before the judge. Accordingly, the testimony taken would have to be reduced to writing and signed by the witness or witnesses that offered testimony, under oath, to supplement the affidavit.

174 Colo. at 39-40, 482 P.2d at 374. It is clear that when...